Copyright for the Freelance Artist Pt 1: Copyright Basics

So today we have an awesome guest blogger Lee Morin, an Entertainment Lawyer here to shed some light about things that artists might not know but probably should, especially if they are freelancing or considering doing so. One of these things that people might be familiar with but not in details have to do with the issue of copyright in art and adaptations. While something we are all probably familiar with at a basic level, here’s some useful information that might get artists more familiar with a bit more than just the definition and a bit of how copyright is important especially to artists.

* This guest blog post was written by Lee Morin, Esq.

OF COPYRIGHT, CONTRACTS, AND FAN ART

If you are reading this blog, words like “manga,” “cosplay,” or “doujinshi,” may seem ordinary. To the uninitiated, these words are foreign; but, if you have heard of Pokémon, or Dragon Ball Z, then you know “manga”[1]. My first encounter with manga was the film adaptation ofAkira, and later withGhost in the Shell, whose soundtrack is as haunting as its subject matter. Following in the footsteps of the crossover tradition was the epic film adaptation,Final Fantasy: The Spirits Within, from the successful media franchise Final Fantasy, which, “centers on a series of fantasy and science fantasy role-playing video games, but includes motion pictures, anime, printed media, and other merchandise [2].”

The film adaptation of Final Fantasy was the first photorealistic computer animated feature film, and most expensive to produce at $137 million with a staff of 200 at 960 workstations rendering 141,964 frames over a span of four years [3]. Despite its over $85 million success at the box office, which gross earnings exceeded Akira and Ghost in the Shell by $74 million and $83 million, respectively, Final Fantasy: The Spirits Within comparatively tanked, leaving its backers in the lurch by over $50 million. With such high stakes, it becomes apparent why Japanese animation, its predecessor, manga, and its fan art, doujinshi, anime music videos, and cosplay, are a source of livelihood and intrigue for those, who appreciate their unique creative aspects.

Book Definition of Copyright

You may wonder how such a seemingly ennui-filled topic as copyright law plays a part in the fascinating world described above.

The definition of copyright is an original workof authorship fixed in a tangible medium of expression [4]; therefore, consider how many authors are involved in producing manga, doujinshi, or animation and in each case the definition can be applied. To qualify for copyright, work must be “original,” or conceived independently by the author(s), and set into a tangible medium of expression, such as captured in a drawing, computer animation, or recording.

Cosplay, or costume play, does not qualify for copyright if the wearer merely copies a specific character; however, if the wearer creates an original outfit to express an idea, then the expression of that idea in the medium of clothing and accessories qualifies for copyright protection. Work must not only be independently created, but also sufficiently creative. The legal threshold for creativity is, “extremely low; even a slight amount will suffice [5];” however, the more your work presents unique creative aspects, the easier it is to prove a case of copyright infringement in the event that you find someone has used your work without your permission.

How to Register for Copyright: The Basics

Once you decide that your work may qualify for copyright in the United States, you may consider registering it with the federal authority, the Copyright Office. The expense is quite low to register a work or collections of works, which may also be done online. There is relatively little examination; therefore, barring any patent errors, and assuming you read the instructions for how to fill out an application correctly, you may apply for copyright registration of your own work. If you are hesitant to complete the application yourself, you can always hire a qualified attorney to assist you, which can set your mind at ease depending on the complexity of the work or works to be registered.

What Types of Work qualify for Copyright Registration?

The main subject matters that qualify for copyright registration are literary works; musical works (including lyrics); dramatic works (including music); pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works (including interactive games); sound recordings; and architectural works [6].

Benefits of Copyright

Once registered, the copyright provides its holder with a number of benefits.

2. Legal Right to Exclude

Second, you now have the legal right to exclude others from infringing on your rights as a copyright holder, which are, briefly, the right to reproduce or copy; to prepare derivative works; to distribute to the public; to perform the work publicly; to display the work publicly; and in the case of sound recordings, to perform the work publicly by means of a digital audio transmission [7]. The right to exclude others from your copyright rights is a powerful asset and exemplifies that registration grants a temporary monopoly on use of your work. When combined with a diverse number of uses (e.g., copying, distribution, performance), exclusivity can become a lucrative business if you know how to parse the rights correctly.

3. Access to the Courts/ Statutory Damages

Third, if you ever find yourself the victim of copyright infringement, that is, use of your work without permission, then a registered copyright will not only provide its holder with access to the courts for the purpose of enforcement, but also with access to statutory damages, which can range in the thousands of dollars per violation.

How Long does Copyright Last?

Exclusive rights under copyright can last a long time, and unlike trademarks, do not necessarily require that they be enforced every time there is a violation in order to maintain their integrity. A copyright currently lasts the lifetime of its author plus an additional seventy years [8]. In the case of more than one author, then the additional seventy years begins upon the decease of the last surviving author [9].

If the work is anonymous, pseudonymous, or a work made for hire, the copyright endures for ninety-five years from its first date of publication or one hundred twenty year from its creation, whichever expires first[10]. Copyright duration is therefore controlled by the identity of the author, a critical detail when completing your application for registration of federal copyright. For example, if you create a work for hire, the identity of the author is the employer or person commissioning the work; thus, duration is controlled not by the artist’s lifespan, but its date of creation or publication.

Now that you know what it means to hold a copyright, how to register one, and its benefits, you are better equipped to negotiate your rights at the bargaining table with prospective clients or employers. In part 2 of our blog, we will delve into the longstanding controversy between Jack Kirby and Marvel Comics to demonstrate the importance of the employment agreement. Then, we will discuss three main employment agreements that you are likely to encounter as a freelance artist.

Parts 3 and 4 of our blog will discuss copyright infringement, what it is, how to avoid it, and what happens if you sell or display fan art, cosplay, or perform anime music videos at a convention. We will also address fansubs and selling fan art or cosplay via online vendors like Etsy and Ebay.

Needy Animator Notes:

This topic is just getting saucy and a short intro into the wonderful world of Entertainment Law, which we will have more specific examples of. One of the important things in life is self-awareness and as artists and animators, knowing the basics of law is self-protection. Getting this information from someone who has studied and worked in this field directly is even more valuable. Many artists like myself might be a bit more shy in practice with this area but the Needy Animator aims to provide more information that is relevant to those in the field. I would like to thank Lee for this wonderful post and if you would like to read more of her other thoughts on Entertainment law and check out her profile, please click on her link below.

Disclaimer: “The information contained in this blog is for general information purposes and is not legal advice.”

GUEST PROFILE

Lee Morin, Esq., is Principal Attorney at MORINEntertainment Law, a boutique law firm in metro Atlanta that specializes in serving artists and entrepreneurs in creative industries, including music business, fine art, game design, book publishing, theatre, film, television, and fashion design. Please sign up for our monthly newsletter to receive news, events, and rate specials delivered periodically to your inbox. Thank you for your interest!